23 February 2004

Contact: Robin Gross, IP Justice Executive Director
+1 415-553-6261 robin@ipjustice.org

Controversial Intellectual Property Law Rushes EU Parliament:
European Consumers Face “Nuclear Weapons” of IP Law Enforcement

Today and tomorrow (23-24 February 2004), the controversial European Union Directive for the Enforcement of Intellectual Property Rights heads to its final debate in the EU’s Legal Affairs (JURI) Committee. Although criticized by civil liberties groups, scientists, and industry groups for its extreme provisions and harsh treatment of consumers, the proposed directive has moved through the EU legislative process with unprecedented speed and threatens to become EU law as soon as next month.

The directive was originally intended to harmonize Member States existing enforcement laws against large-scale commercial counterfeiting. But through EU back-room deals, the directive’s scope has been extended to any infringement — including all minor, unintentional, and non-commercial infringements, such as P2P file-sharing. 

The directive creates powerful new enforcement tools that will be used against average European consumers for engaging in non-commercial or accidental infringements. For example, recording industry executives will be able to raid and ransack the homes of P2P file-sharers and freeze an alleged infringer’s bank account without any hearing under the directive’s Anton Pillar Orders and Mareva Injunctions. 

Most consumers would not have a problem with this directive if it targeted its “nuclear weapons” of enforcement tools against commercial counterfeiters. But a big problem is created by the lack of proportionality in targeting consumers for non-commercial infringements. 

“Similar subpoena powers created under the US Digital Millennium Copyright Act (DMCA) have allowed the recording industry to frighten and financially extort thousands of US consumers for P2P file-sharing of music,” said Robin Gross, attorney and Executive Director of IP Justice, an international civil liberties organization that promotes balanced intellectual property laws. “The directive’s bloated scope will allow the recording industry to violate the rights of millions of European consumers for minor infringements.”

Last fall, an international coalition of 50 civil liberties groups and consumer rights campaigns sent a letter to the EU’s Legal Affairs Committee (JURI) urging rejection of the proposed directive due to its harm to civil liberties, competition, and innovation. The Campaign for an Open Digital Environment (CODE) letter has been translated into 9 languages.

The breakneck speed with which this directive has moved through the legislative process is particularly troubling. The directive’s Rapporteur (also wife of Vivendi-Universal’s CEO) French MEP Madame Janelly Fourtou has placed it on a “First Reading”, a rarely used fast-track procedure for uncontroversial directives where there is unanimous agreement on a subject. Wildly controversial, this directive should be forced to undergo a “Second Reading” where its monumental provisions can be adequately debated by the public and legislators before they are imposed throughout Europe.

The directive’s criminal sanctions were recently excluded from the proposal in exchange for its targeting of non-commercial infringements. This was a needless giveaway since the enforcement directive (brought under a “First Pillar” procedure) lacked the political authority to create substantive criminal law. This directive cannot create criminal sanctions capable of withstanding a legal challenge at the European Court of Justice. The directive would have to undergo a “Third Pillar” procedure to legitimately make substantive criminal law for the EU over intellectual property rights. Thus the back-room deal that resulted in the directive’s expanded scope in exchange for deleting the criminal sanctions was wholly unnecessary. Criminal sanctions were always inappropriate for this directive, so there was no legitimate justification for the EU to widen the directive’s scope to target non-commercial infringements and consequently endanger millions of European consumers.

Earlier this month, the US Government submitted inter-agency comments to the EU on the proposed directive and supported widening its scope to non-commercial infringements

After the JURI Committee approves the directive on 24 February, it passes to the EU Plenary for a final debate and vote on 8-11 March 2004. Member States have two years to bring their national laws in compliance after the directive’s adoption.

The Foundation for a Free Information Infrastructure UK (FFII-UK) has proposed a set of amendments that would reduce the directive’s harm to consumers including limiting its scope to commercial cases. March 3rd is the deadline for amendments to be tabled for the final vote in the EU Plenary on 8-11 March 2004.

For More Information on IPR Enforcement Directive:

International Campaign for an Open Digital Environment (CODE):

Current (16 Feb.) Text of EU IP Rights Enforcement Directive:

CODE Organizational Letter to EU’s JURI Committee (11 August 2003):

Amendments Proposed by the Foundation for a Free Information Infrastructure UK (FFII-UK):

EU JURI Committee Members:

US Gov’t Comments to EU on IP Rights Enforcement Directive:
Inter-Agency Submission with input from USPTO, USTR, US Copyright Office, US State Dept. (February 2004)

IP Justice is an international civil liberties organization that promotes balanced intellectual property laws. IP Justice defends consumer rights to use digital media worldwide and is a non-profit organization based in San Francisco. IP Justice was founded in 2002 by Robin Gross, who serves as its Executive Director. To learn more about IP Justice, visit the website at http://www.ipjustice.org.

Campaign for an Open Digital Environment